Since Judge Shira Scheindlin’s landmark decisions in the seminal Zubulake cases, the use of litigation holds to identify and preserve relevant evidence has become an integral part of litigation practice. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). Last year, while revisiting Zubulake in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec. , 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010), Judge Scheindlin reiterated the now well-accepted rule that litigation holds must be implemented when the duty to preserve evidence arises. Significantly, she also found that the failure to implement a written litigation hold when the duty to preserve arises constitutes gross negligence.
The duty to preserve evidence arises when litigation is reasonably anticipated, threatened or commenced. The duty to preserve applies to plaintiffs and defendants alike. For a plaintiff, the duty will likely arise long before litigation actually commences. Once the duty arises, the party must take reasonable steps to identify, locate and preserve relevant evidence. The duty to preserve is a continuing one. Affirmative steps must be taken to ensure that key players (both current and former employees) are identified, their documents preserved and that routine document destruction policies are suspended.
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